The People v. Thomas C. CostelloThe People v. Thomas C. Costello
Lead Opinion
OPINION OF THE COURT
On this appeal, we are asked to decide when a defendant’s judgment of conviction and sentence becomes final for purposes of applying a new rule of federal constitutional criminal procedure, when the defendant does not take a direct appeal to the Appellate Division. Defendant asks us to hold that the judgment did not become final until one year and 30 days after he was sentenced, inasmuch as that was the last day that he could have sоught an extension from the Appellate Division to file a late notice of appeal pursuant to CPL 460.30 (1).
The Appellate Division never granted defendant such relief. No motion pursuant to CPL 460.30 (1) for leave to file a late notice of appeal was ever made. Defendant asks us to extend the finality of the judgment by the one-year grace period of CPL 460.30 (1) simply because that grace period is available,
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Defеndant is a native of Honduras who was granted Temporary Protected Status by United States immigration authorities in 1999. In 2008, defendant was charged with assault in the second degree, a class D felony (see Penal Law § 120.05). On March 19, 2009, defendant pleaded guilty to the charge in exchange for a negotiated sentence of five years’ probation. On May 14, 2009, defendant was sentenced as promised. During the sentencing proceeding, defendant was informed on the record of his right to appeal the judgment оf conviction and sentence. Defendant nevertheless did not file a notice of appeal.
Defendant subsequently was notified that his Temporary Protected Status would not be renewed due to his felony conviction, and he was placed in removal proceedings. In April 2011, defendant filed a CPL 440.10 motion seeking to vacate the 2009 judgment. Defendant’s primary claim was based on the United States Supreme Court’s 2010 decision in Padilla v Kentucky (
Supreme Court denied defendant’s CPL 440.10 motion without a hearing. The court concluded that Padilla should not be applied retroactively to judgments such as defendant’s that became final before Padilla was decided.
A Justice of the Appellate Division granted defendant’s application for leave to appeal from Supreme Court’s order (2012
After Chaidez wаs decided, the Appellate Division invited the parties to comment on whether defendant’s 2009 judgment of conviction and sentence became final before or after Padilla was decided. Defendant contended that the judgment did not become final until June 13, 2010, a year and 30 days after he was sentenced on May 14, 2009. Defendant’s reasoning was that because CPL 460.10 (1) (a) granted him 30 days from the imposition of sentence to file a notice of appeal, and CPL 460.30 (1) granted him an additional year tо obtain an extension to file a late notice of appeal, he had not exhausted the availability of an appeal until the last date on which he could have filed a notice of appeal. The People responded, as relevant here, that the judgment became final 30 days after sentencing, inasmuch as that was the last date upon which defendant had the automatic right to file a notice of appeal pursuant to CPL 460.10 (1) (a). The People argued that defendant was not entitled to extend the date of finality of the judgment by relying on the one-year grace period of CPL 460.30 (1), inasmuch as defendant never sought an extension to file a late notice of appeal pursuant to that statute.
The Appellate Division rejected defendant’s contention that it should give broader retroactive effect to Padilla than the United States Supreme Court gave to Padilla in Chaidez, and therefore held that Padilla should not be applied retroactively to judgments that became final before Padilla was decided (see
In Andrews, the Appellate Division noted that the defendant in that case could not benefit from Padilla because “his conviction became final, at the latest, on October 5, 2009, the last date on which he would have been permitted to seek leave to file a late notice of appeal” (Andrews,
A Judge of this Court granted the People leave to appeal (
IL
Initially, we note that there are certain questions of law that are not at issue on this appeal. First, the retroactive application of Padilla is not at issue. As noted above, in Chaidez, the United States Supreme Court held that Padilla announced a new rule and that pursuant to federal retroactivity principles, that new rule would not аpply to convictions that became final before Padilla was decided (see Chaidez, 568 US at —,
Second, for purposes of assessing whether a new rule of federal constitutional criminal procedure applies on collateral review, the date of finality of a judgment where a defendant does take a direct appeal is not at issue here. When a defendant takes a direct appeal, the judgment becomes final for federal collateral review purposes when the defendant’s applications for discretionary review from higher appellate courts have been denied, or the time for seeking such discretionary appellate review has еxpired (see Gonzalez v Thaler, 565 US —, —,
Here, however, defendant did not take a direct appeal. Thus, the only question of law presented for our review is when a judgment of conviction and sentence becomes final where the defendant does not take a direct appeal, for purposes of determining whether a new rule of federal constitutional criminal procedure will apply in a stаte postconviction collateral review proceeding.
III.
Relying on the general federal standard of finality (see e.g. Griffith,
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) provides that a federal habeas corpus petitioner generally must file the petition within one year of the date that
“As we stated in holding that state-court applications for collateral relief do not ‘restart’ the AEDPA limitations period, ‘[i]f the one-year period began anew when the state court denied сollateral relief, then state prisoners could extend or manipulate the deadline for federal habeas review by filing additional petitions in state court,’ thus defeating the goal of the AEDPA to prevent undue delays in federal habeas review. This reasoning applies at least as strongly to motions to extend the time to appeal, which ‘can be sought at any time, even many years after conviction.’ Accordingly, we hold that the filing of a motion to extend the time to appeal or to file a late notice of appeal does not ‘restart’ the AEDPA limitation period” (Bethea,293 F3d at 578-579 [citations omitted]).
The Second Circuit therefore concluded that the petitioner’s judgment became final 30 days after sentencing, “when [his] time for filing a notice of appeal from his judgment of conviction expired” pursuant to CPL 460.10 (1) (id. at 578; see also Villegas v Hunt,
We agree with defendant and the amici curiae who have submitted a brief in support of his position that Bethea is not dispositive of the question before us {see generally Danforth v Minnesota,
More crucial to our analysis, however, is the uncertainty that would result in the finality of judgments if we adopted defendant’s definition of finality. The Appellate Division did not grant defendant an extension to file a notice of appeal pursuant to CPL 460.30 (1) because defendant never sought such relief. Defendant asks us to extend the date of finality of the judgment by the one-year grace period of CPL 460.30 (1) simply because that grace period exists. Contrary to defendant’s implication, that grace period is not available to any defendant who asks for an extension.
Rather, a defendant seeking to file a late notice of appeal pursuant to CPL 460.30 (1) must demonstrate that he or she was prevented from timely filing a notice of appeal due to the “improper conduct of a public servant or improper conduct, death or disability of the defendant’s attorney,” or the “inability of the defendant and his attorney to have communicated . . . concerning whether an appeal should be taken” (CPL 460.30 [1] [a], [b]). Defendant did not make any such showing because he did not request leave from the Appellate Division to file a late notice of appeal pursuant to CPL 460.30 (l).
We decline to do so. Adopting defendant’s reasoning would result in uncertainty in the finality of judgments in many procedural situations. For example, a defendant who takes a direct appeal to the Appellate Division but does not seek lеave
Indeed, if we adopt defendant’s logic, other defendants who did not take a direct appeal conceivably could argue that their judgments were never final, inasmuch as they could seek to file a late notice of appeal even after the one-year grace period of CPL 460.30 has expired by moving for a writ of error coram nobis (see generally People v Syville,
We have recognized society’s interest in the finality of judgments as “formidable” (People v Jackson, 78 NY2d 638, 647 [1991]). Defendant’s definition of finality would wreak havoc on that formidable interest by requiring any court determining the date of finality of a judgment to analyze what could have happened rather than what did happen. We therefore reject defendant’s proposed definition of finality. We hold that where, as here, a defendant does not take a direct appeal from the judgment of conviction and sentence, the judgment becomes final 30 days after sentencing, when the defendant’s automatic right to seek direct appellate review of the judgment expires pursuant to CPL 460.10 (1) (a).
Accordingly, the order of the Appellate Division should be reversed and the order of Supreme Court rеinstated.
Notes
. Although the Supreme Court discussed the finality of the defendant’s “conviction” in Chaidez, and we discuss here the finality of defendant’s “judgment” due to our own state’s terminology (see CPL 1.20 [15]), we are referring to the same legal principle.
. Contrary to the dissent’s suggestion (see dissenting op at 540-541), we express no opinion on the date of finality of a judgment where the defendant makes an unsuccessful CPL 460.30 motion for leave to file a late notice of appeal. Defendant here made no such motion, and we therefore havе no occasion to consider whether the finality of the judgment would be extended by the mere making of a CPL 460.30 motion, or whether the motion must be granted by the Appellate Division to warrant a departure from the rule we set forth here. To decide that question would amount to an improper advisory opinion.
Dissenting Opinion
(dissenting). The question presented on this appeal is when does a judgment become final for purposes of a new rule announced during CPL 460.30’s one-year grace period fоr filing a notice of appeal. The majority needlessly addresses a much broader question and concludes that, in the case of a defendant who fails to seek an extension pursuant to 460.30, a judgment is final 30 days from when the defendant was sentenced, pursuant to CPL 460.10 (1) (a). I dissent, and rather than rely on federal habeas concerns not relevant to the state issues presented in this appeal or unsupported prudential concerns about a potential impact on finality of judgments, I ground my analysis on the unique facts of this case and the need for a legally sound and fair approach to the predicament faced by defendants when a new rule is issued after sentencing but before the time under 460.30 expires.
Defendant was sentenced upon his guilty plea on May 14, 2009, and under CPL 460.30 had until June 14, 2010, to seek leave to file a notice of appeal. Approximately 10 weeks before the end of this one-year period, the United States Supreme Court issued its deсision in Padilla v Kentucky (
The majority reverses, relying, in part, on Bethea v Girdich (
Turning the focus to this limited class of defendants whose claims arise after the expiration of the initial 30 days for filing a notice of appeal as of right, the majority’s approach results in an illogical distinction between similarly situated defendants, and potentially shields illegal convictions from meritorious claims by foreclosing avenues of collateral and habeas review.
By way of example, compare the situation where two defendants sentenced on the same day, in accordance with their guilty pleas, do not file a notice of appeal within the 30-day period provided for in CPL 460.10. Ten months later, our Court pronounces a new rule, which ostensibly provides an appellate issue for both defendants. One defendant files a motion for an extension under CPL 460.30, which the Appellate Division denies, and defendant does not seek review from our Court, or alternatively we deny the leave to appeal. The other defendant does not seek an extension. Under the majority’s holding, the defendant who unsuccessfully filed for an extension has a viable argument that the judgment is final when this Court denies leave, or when the time for discretionary review of the denial of the 460.30 motion has expired. In contrast, the judgment of the defendant who did not file for an extension is final 30 days after sentencing — months before the appellate claim was viable. Yet, these two defendants are similar in all respects: both failed to file a notice of appeal within the 30 days provided
Or consider the example where we announce a new rule on the last day оf the one-year extension period. Even the most diligent defendant, including one not incarcerated, is unlikely to seek leave to appeal before the 460.30 time period runs out. A rule foreclosing such a defendant from an opportunity to collaterally challenge the judgment of conviction and sentence is unjustifiably harsh and unfair, and does nothing to further the goals of our state laws (see e.g. People v Syville,
The majority’s “[m]ore crucial” basis for its holding is what it considers to be “the uncertainty that would result in thе finality of judgments if [the Court] adopted defendant’s definition of finality” (majority op at 537). However, the majority’s prudential concerns regarding the finality of appeals are unjustified. The fact is that CPL 460.30 has a defined one-year deadline (see Syville,
Order of the Appellate Division reversed and order of Supreme Court, Suffolk County, reinstated.
. Notwithstanding the majority’s statements to the contrary, my disagreements are based on the ineluctable conclusions to be drawn from the majority’s analysis, and not on what the majority claims it did not decide (see majority op at 537 n 2).
. We should also not turn a blind eye to the fact that, within the Appellate Division, the Departments grant extensions under this provision at different rates, and that, as a result, the majority’s holding unfairly penalizes defendants based on differences beyond their control. (See Joanne Macri,
Here, the Second Department rendered its decision on defendant’s case fully aware of its practice regarding motions under 460.30, and in my opinion there is no compelling legal basis to reverse in this case.